Police failure to return or report items seized to a Justice of the Peace as soon as practicable constitutes a breach of an accused’s rights under s. 8 of the Charter

For those officers that may feel “knowledge” of the law is not vital to the job or an investigation, here is another example to dispel the myth.

R. v. Garcia-Machado 2014 ONCJ 81 – on August 25, 2012, after attending a party, Mr. Garcia-Machado drove his Volkswagen Golf off the road, where it collided with two trees before coming to a stop. Mr. Garcia-Machado was carrying two passengers: his friend Mr. Carson Cameron sat in the front and Mr. Carson’s friend Ms. Katheryn Alphonso sat in the rear. Able to leave the car under her own steam, Ms. Alphonso ran home to call for help. She sustained a puncture wound to her knee that required stitches. Mr. Cameron sustained a concussion and a serious fracture to his lower right leg which required surgery and a long period of rehabilitation. Mr. Garcia-Machado suffered a broken femur. Both men were knocked unconscious by the impact and had to be extricated from the car by firefighters using the “jaws of life” before being taken to hospital. Using a search warrant, police seized a sample of Mr. Garcia-Machado’s blood and his medical records from the hospital on August 28, 2012. These were submitted to the Centre of Forensic Sciences (“CFS”) and a toxicologist was able to use them to come to the opinion that Mr. Garcia-Machado was “Over 80” at the time of the accident and that his ability to drive would have been impaired by alcohol. On October 26, 2012, Mr. Garcia-Machado was charged with Impaired Driving Causing Bodily Harm and “Over 80” Causing Bodily Harm. On December 17, 2012 and for the first time, police made a report to a Justice of the Peace concerning the items seized from the hospital.

The Ontario Court of Justice ruled that the police failure to return or report the items seized to a Justice of the Peace (in this case) as soon as practicable, contrary to section 487(1)(e) of the Criminal Code, constituted a breach of the accused’s rights under s. 8 of the Charter:

“In this case, the [four-month] delay was caused by the officer’s ignorance of the law and that of his fellow officers (including superiors), and his failure to consult the appropriate section of the Criminal Code. It was also the result of improper training and his decision to prioritize other investigations and to accommodate his shift work.

In this case, based on the authorities and the highly personal and private information at issue, I find that the police failure to report to a justice as soon as practicable rendered the otherwise valid search unlawful and unreasonable, contrary to s. 8 of the Charter.”

The blood sample and hospital records seized in the drinking and driving case were excluded under s. 24(2) where the police conduct was the result of “an apparent systemic and negligent failure to comply with the report and return provisions of the Criminal Code in the face of clear law requiring compliance.”

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Filed under Recent Case Law, Search and Seizure

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